June 2, 2009 CMS Memo on Prescriptions

On
June 2, 2009, CMS published guidance for WCMSA submitters regarding prescription drug issues under the new
independent review procedures effective June 1, 2009. In response to an obvious
barrage of inquiries by the WC community since the AWP memo was released on
April 3, 2009,
CMS has addressed many of the issues that the memo raised. Despite the
conciliatory tone, CMS has not really conceded to any of the issues raised.

CMS
has stated essentially that it will consider any evidence presented with a
WCMSA proposal, however absent a clear and definitive statement from the
treating physician (bolded in the publication in case you overlooked it)
supporting whatever you are trying to prove, it is not likely to consider your
rational for not including a lifetime supply of all current drugs in use priced
at AWP.

What
CMS did remind us is that the Patel Memo said that WCMSAs are only
appropriate after MMI has been reached, which explains a lot about the
rationale behind some of its review policies. If at MMI with a permanent
impairment, I guess the assumption is that the drug regime is stable,
consistent and unchanging. There should be no question of titration or
termination of the drugs in question at the time of review. If it were only
that easy. This type of naivety toward the insurance settlement process is why
there is such a backlash against the WCMSA review process.

CMS
continues to ignore the fact that the workers’ compensation program
is contentious and that very frequently the “medical evidence”
that it is basing its opinions on is not truly reflective of the reality of the
claimants’ medical situation. In statement #3, CMS agrees to consider a
tapering program if proposed by the treating physician. If claimant is at MMI
with a stable need for his current meds, why is he suddenly able to taper in
anticipation of settlement? CMS routinely ignores any evidence that at the time
of submission claimant has virtually ceased treatment in anticipation of
settlement and will require funding of a WCMSA based upon the past medical
record. Accepting the treating physician’s recommendations without question is
like letting the claimant’s attorney set the reserve on a claim or the defense
attorney deciding to accept a settlement offer on behalf of the claimant. While
you may get an accurate result on occasion, there might just be a little bias
built into the process.

Other
disappointing points of interest concerned patent expiration, off-label uses
and DURs, none of which it appears will be genuinely considered considered
despite CMS assurance to the contrary. The only scenario where it might be
considered is if the treating physician convincingly makes a statement as to
the applicability. We find it unlikely that a treating physician with 15
minutes to see a patient is going to take the time to clearly and concisely
advocate for less treatment in the interest of documenting the medical record
for MSA purposes.

CMS’
stand is that anything can, and may, happen to an individual’s pharmaceutical
needs, however CMS has elected to err on the side that benefits it most and
require the most costly funding scenario. With respect to off-label
utilization, CMS correctly makes the point that it is legal to prescribe drugs
off -label in the United
States. The part they fail to realize is
that many off-label uses would NOT be Medicare covered under the Part D program
if the drug is not part of a formulary. More on this subject at a later time.

On
the bright side, at least CMS answered one question. The MSA industry now
knows that it may search through the hundreds of listings in Redbook for any
given drug to seek out the least expensive NDC. We wonder if the WCRC will
dedicate that much time to the task while it is independently pricing drugs?
Should they fail to select the least expensive option, will that decision be
subject to reconsideration?

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To amend title XVIII of the Social Security Act to provide for the application of Medicare secondary payer rules to certain workers' compensation settlement agreements and qualified Medicare set-aside provisions